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Yes, it is legal for military courts to prosecute civilians in this country

For quite some time now, the legal minds in this country have been debating the issue of whether the military courts have the legal mandate to prosecute civilians or not.

Friday August 29 2014

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By Paddy Ankunda

For quite some time now, the legal minds in this country have been debating the issue of whether the military courts have the legal mandate to prosecute civilians or not. To some people, taking civilians before a military court may appear draconian, especially if they haven’t bothered to find out how these courts world over get the power to try civilians.

According to the UPDF Act, every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence; and every person found in unlawful possession of arms, ammunition or equipment ordinarily being the monopoly of the defence forces; or other classified stores as prescribed, is subject to military law and can be tried in military courts as appropriate.

This was further supported by the ruling in Civil Appeal No 04 of 2012, between Namugerwa Hadija (appellant) and the DPP and the Attorney General (respondents). Namugerwa Hadijah in that appeal challenged government on whether or not it was right for her brother Ssali Mohamed to be tried in the military General Court Martial. The appellant claimed in her application that her brother was a civilian and that, therefore, the court martial had no jurisdiction over him. The High Court had earlier dismissed her application and her appeal to the Court of Appeal had also been dismissed. Unsatisfied with these decisions, she appealed to the Supreme Court.

The appellant’s brother, Ssali along with two others, was on January 14, 2011 arrested and charged before the military court with aggravated robbery and two other offences relating to the Firearms Act. Ssali had been found in unlawful possession of a Back Star Pistol Number P99A with which it was alleged he robbed one Edson Nuwamanya of a motorcycle in Makindye, Kampala. He was accordingly charged for unlawful possession of a firearm and ammunition.

In his judgment, the lead judge His Lordship Jotham Tumwesigye, JSC stated thus... “ it is clear to me that civilians in Uganda can become subject to military law and once they become subject to military law, they will be tried by the General Court Martial.” The judges concluded: “…therefore, until Section 119 (1) (g) and (h) of the UPDF Act is repealed or declared to be unconstitutional by a competent court, it will remain valid, effective and enforceable regardless of the misgivings of human rights advocates about it.”

It is also on the basis of this law that the UPDF General Court Martial hastried and will continue to try civilian personnel who come, by their own choice, within the ambit of these sections of the law quoted above. The UPDF Act describes clearly the service offences for which serving officers and their accomplices may be tried. For example, the General Court Martial is currently prosecuting civilians accused of carrying out the Rwenzori attacks. In relation to the law above, the Chieftaincy of Military Intelligence (CMI) within the UPDF is mandated to investigate and assemble evidence before prosecution can take place. Investigations take different dimensions, including inviting, arresting, searching and interviewing both suspects and would-be witnesses.

This brings me to the recent case in the media about one Francis Matovu, a business man in Kampala. Matovu was arrested by Police on Entebbe Road around in August. Since we work closely with other agencies in dealing with national threats, police notified us about this arrest. Eventually, it was found out that his name featured very prominently in CMIs investigations about Gen David Sejusa’s treasonable self-declared offences. It is on this basis that we requested police to allow us interview Matovu to establish his links with the renegade general. It is a known fact that Gen Sejusa openly declared war on the government of Uganda, which is a treasonable offence.

Matovu’s names has been featuring in most investigative reports about Sejusa. Not surprisingly, the businessman has on his own admission stated that he is a close associate of Sejusa (See The Observer of August 22). He also admits that he has been making financial remittances to Sejusa in the UK. Important to note is that many names have featured in our investigations about Sejusa. However, Matovu has been clearly resourcing Sejusa as he admits. Isn’t this reason enough for CMI to invite him to assist in the investigations? Also, Matovu was not detained, tortured or even held for eight hours as he claims. In fact, he did not stay for longer than three hours at CMI headquarters.

An example; Ali, a dual Canadian-Iraqi citizen was court-martialed for his role in an assault while serving as a translator attached to (and working with) US military forces in Iraq in 2008. Ali was court-martialed thanks to a 2006 amendment to the Uniform Code of Military Justice (UCMJ). Prior to 2006, the UCMJ had authorised military trials for civilians “serving with or accompanying an armed force in the field” but only during time of war. In 2006, Congress expanded that authorisation to also allow such trials during a “contingency operation”, which federal law defines as virtually any overseas deployment (and some domestic ones) where troops are or may become involved in operations against an “enemy of the United States or against an opposing military force”.

Ali eventually entered into a plea agreement, wherein he agreed to plead guilty to lesser offenses (while reserving his right to challenge his amenability to military jurisdiction on appeal) in exchange for the government dropping the more serious assault charge. In July 2011, the Army Court of Criminal Appeals rejected Ali’s constitutional challenge to his court-martial, and in July 2012, United States Court of Appeal for Armed Forces affirmed. By and large, CMI will continue to pick interest in whoever works for Gen Sejusa for as long as we are investigating this matter. Besides, the government of Uganda is in advanced stages of asking the UK government to hand him over for prosecution. What needs to be understood is that those (both civilians and the army) who shall be found to be aiding him shall be prosecuted under the laws of Uganda.